Clarifying contempt of court

Serious wrongdoings in litigation often attract contempt of court applications. 

One type of dispute involves the parties themselves, most often as a result of breaches of freezing injunctions. However, other recent examples of litigant misbehaviour include the case of Craig Wright, who repeatedly and unsuccessfully alleged that he invented ‘Bitcoin’, and was found to have committed contempt by bringing prohibited proceedings based on him being ‘Satoshi Nakamoto’ (Crypto Open Patent Alliance v Wright [2024] EWHC 3316 (Ch)). 

The second type of dispute involves lawyers, where reported matters in recent years have involved representatives allegedly lying in witness statements (Frain v Reeves [2023] EWHC 73 (Ch)), advising a client to ‘burn’ records  (Ocado v McKeeve [2022] 2079 (Ch)) and deliberately posting the embargoed outcome of a case on social media (Attorney General v Crosland [2021] 4 WLR 103). 

Getting rid of confusion

The examples above bring to light a current core dividing point in the law of contempt, namely the distinction between ‘civil’ and ‘criminal’ contempt, which is shorthand for breaching a court order on the one hand and much else on the other. However, the labels are arcane, and have been criticised at the highest judicial level as ‘unhelpful’ and ‘largely meaningless’ (Attorney General v Times Newspapers Ltd [1992] 1 AC 191).

It therefore comes as little surprise that the Law Commission has been consulting on the law of contempt.

The first headline change suggested by the Law Commission is to do away with the old labels, and to replace them with two new ones, namely: 

• contempt by breach of a court order or undertaking;
• ‘general contempt’, which would encompass any conduct that interferes with the administration of justice in a non-trivial way.

The suggestion of clearer terminology is a sensible one, and will remove some of the confusion that parties to contempt proceedings feel when trying to grasp the relevant law.  

Contempt by way of breaching court orders looks likely to have easier tests for proving intention and breach, and rightly so. However, ‘general contempt’ is more elastic, and the next issue is how nuanced it should be.

Where should the thresholds be set?

When looking at the appropriate ingredients for general contempt, the position is muddied by the fact that contempt proceedings can serve a broad range of purposes. Some applications, such as those aimed at enforcing proper disclosure or attacking the contents of witness statements, will be brought by a litigant largely to protect their own interests. However, others will be more focused on supporting the administration of justice, for e.g., by punishing a party taking photographs of the judge. It is hard to devise the threshold tests that should apply to such a wide spectrum of misadventure.

This may be why there is array of threshold tests for general contempt under consideration in the Law Commission’s consultation paper. Some of these risk watering down the component elements of ‘general’ contempt, such as: 

• a threshold that only would only require a risk of the respondent’s conduct interfering with the administration of justice in a ‘non-trivial’ (rather than serious or substantial) way;
• a fault element that could be satisfied by recklessness, as well as intention.

The trouble with diluted tests such as these is that they invite more contempt applications rather than fewer. And that is where another key challenge comes in.

Grab your weapon? 

As the Law Commission acknowledges, an increasing issue is the ‘weaponisation’ of contempt proceedings. Many people practising in the commercial fraud field will have experience of claimants using contempt proceedings to bring respondents ‘to their knees’. As contempt applications are frequently prioritised to be heard before the trial of the action, they can eat up litigation funds. Practitioners who handle professional discipline matters, particularly against solicitors, may also have seen cases where contempt proceedings have been used to drive a wedge between a party and their representatives before trial.

One of the Law Commission’s proposed methods to put the brakes on inappropriate contempt proceedings is to require a permission stage in all cases. However, this solution is arguably aimed at the wrong target. The present (admittedly bewildering) system contained in CPR 81.3 only exempts an applicant from the need to get permission in existing proceedings or for ‘breach of order’ contempt. Any new impediment to applicants pursuing these could be a serious matter. Additional permission hurdles can add layers of complexity and expense that are off-putting to all but the most determined and well-funded litigants. There could be real enforcement dangers in putting new obstacles in the path of litigants seeking to enforce orders against disobedient opponents in particular.

Interim coercive remedies? 

The Law Commission is also considering taking the ‘heat’ out of some contempt applications by proposing a system of ‘interim coercive remedies’ falling short of full contempt proceedings. 

The first trouble with the proposals as currently formulated is that they do not fall very far short of full contempt proceedings. Rather than adopting a threshold like the one used in freezing injunctions (‘good arguable case/serious issue to be tried’) the suggestion is that all of the elements of contempt would have to be made out, but to the civil rather than criminal standard. It is hard to see how this could save much expense.   

The second issue is identifying what remedies could be used that are not already in existence or do not hold appeal. The Law Commission’s consultation identifies paying a deposit into court, sequestration of assets, or surrender of a passport. In cases involving freezing injunctions, the applicant’s objective is usually to freeze assets for their own eventual benefit, rather than to put them under the control of the court or anyone else. Surrendering a passport often already forms part of an application for an interim remedy, and the risk is that by identifying it as an ‘interim coercive remedy’, the tests required to obtain such an order become more rather than less onerous.

The third issue is that interim coercive remedies could create unforeseen evidential problems. Respondents to contempt proceedings have a right against self-incrimination, and problems often arise where evidence they have given in one context is sought to be used against them in another.

Interim coercive remedies therefore sound good in theory, but require much further thought in practice, perhaps to include procedural interim coercive remedies.

When should the courts get involved? 

Some contempts of court involve interference with the administration of justice in a way that private litigants may not wish to spend time and costs pursuing. CPR 81.6, therefore, currently requires courts to actively consider whether or not a summons should be issued whenever it appears that contempt may have been committed. However, the duty imposed by the rules does not marry up with the courts’ powers and resources. In other proceedings brought by Mr Wright (of self-proclaimed Bitcoin fame), a first instance judge concluded that contempt proceedings should be brought, only for the order to be set aside by the Divisional Court. The problem the Divisional Court identified was that judges lack investigatory powers, and are ill-equipped to deal unaided with contempt proceedings involving disputed facts and complex legal issues (Wright v McCormack [2023] EWHC 1030). The Law Commission’s consultation document evidences some misgivings about judges playing an active role in contempt proceedings, particularly when the judge witnessed the contempt. One area for further development could therefore be the establishment of a third party in addition to the Attorney General, who could bring contempt proceedings in these types of  cases.

One size fits all?

A final key area where the Law Commission has identified the need for reform is as regards procedure. There is currently a surprising lack of guidance in the CPR, which can lead to frequent adjournments, the risk of unfairness and the development of untested practices (which often have the best of motivations, but which can cause unintended consequences). 

One such practice, very recently subject to challenge in VB v JG [2025] EWHC 840 (Fam) is the imposition of ‘ground rules’ about what an unrepresented respondent can be cross-examined about. In that case, the court granted permission to appeal on the basis that a party should have the right to cross examine a respondent on all issues relevant to the committal application and that the court had arguably failed to afford enough importance to the quasi-criminal nature of the case. 

Since contempt proceedings remain relatively uncommon and are unlikely to form a large part of any particular judge’s experience, more detailed procedural guidance could have real value. 

Looking ahead?

Looking ahead, it appears likely that the increased uptake of artificial intelligence (AI) by litigants and lawyers will come into conflict with court rules, and will therefore prompt contempt proceedings. It is hard to see how the use of AI to draft parts of witness statements could marry up with the Business and Property Courts’ rules requiring statements to be in a witness’s own words. The courts’ cumbersome transcription procedures may fall increasingly behind litigants’ expectations of taping meetings in other contexts, and may increase the temptation for surreptitious recordings.

Whatever changes the Law Commission suggests, contempt law will have to carry on moving with the times.

Helen Evans KC is a silk at 4 New Square Chambers, specialising in professional liability, professional discipline, contempt of court, fraud and insurance coverage work. She is a co-editor of Jackson & Powell on Professional Liability.

Copyright & permissions